Current Medical Aid-in-Dying Laws Discriminate against Individuals with Disabilities
Authors: Megan S. Wright
Journal: The American Journal of Bioethics (2023)

Click to increase image sizeClick to decrease image sizeThis article refers to:Neurologic Diseases and Medical Aid in Dying: Aid-in-Dying Laws Create an Underclass of Patients Based on DisabilityThis article is referred to by:Permit Assisted Self-Administration: A Response to Open Peer Commentaries on Neurologic Diseases and Medical Aid in Dying: Aid-in-Dying Laws Create an Underclass of Patients Based on Disability Notes1 The California End of Life Option Act limits eligibility to adults “with capacity to make decisions” and defines capacity as “the ability to understand the nature and consequences of a health care decision, the ability to understand its significant benefits, risks, and alternatives, and the ability to make and communicate an informed decision to health care providers” (Cal. Health & Safety Code §§ 443.2(a), 443.1(e)). California also requires that witnesses to the signed written request for aid in dying attest that the individual making the request is of “sound mind” (Cal. Health & Safety Code § 443.3(b)(3)(C)).Another legal consideration implicating decisional capacity regards concern about “impaired judgment due to mental disorders,” which requires physicians to refer some patients requesting medical aid in dying to a mental health specialist to ensure the “individual has the capacity to make medical decisions and is not suffering from impaired judgment due to a mental disorder” and prohibits prescribing the aid-in-dying medication if the individual cannot demonstrate capacity or is judged to have impaired judgment from a mental disorder (Cal. Health & Safety Code §§ 443.1(l), 443.5(a)(1)(A)(i-iii)). These requirements may impose a burden on individuals with psychiatric illnesses and exclude them from this end-of-life option contrary to disability law and ethics, but space constraints make this issue beyond the scope of this commentary.2 Some may argue that the solution to the problem of incapacity when someone is otherwise eligible for medical aid in dying is to facilitate access through use of advance directives (Menzel and Steinbock Citation2013). But advance directives may lock individuals into preferences they no longer hold, which is why I have argued that supported decision making is the preferable option given that current interests would have significant weight (Wright Citation2020; Citation2021).3 Supported decision-making legislation has been rapidly spreading across the United States, and the following website contains up-to-date information about what states have adopted the legislation. CPR Supported Decision-Making, U.S. Supported Decision-Making Laws, https://supporteddecisions.org/resources-on-sdm/state-supported-decision-making-laws-and-court-decisions/ (last visited July 4, 2023).4 For an analysis of how supported decision-making and medical aid-in-dying laws intersect in the District of Columbia, see Wright Citation2021. It is unknown whether an individual with a supported decision-making agreement executed in a state with supported decision-making legislation could use the agreement to access medical aid-in-dying in a state that did not have supported decision-making legislation.5 Not all medical aid-in-dying laws contain this requirement. The Oregon Death with Dignity Act (Citation2023) expressly allows for individuals making the request to receive assist in communication, including with demonstrating capacity. The law states that capacity means the “patient has the ability to make and communicate health care decisions to health care providers, including communication through persons familiar with the patient's manner of communicating” (Or. Rev. Stat. § 127.800 sec. 1.01(3)).Additional informationFundingThe author(s) reported there is no funding associated with the work featured in this article.